A rapist’s fight to uphold the ruling his public protection order breached the Bill of Rights Act could see the Government forced to address the controversial 2014 policy under new laws
On Monday, serial rapist Mark David Chisnall will argue his public protection order and extended supervision order are breaches of the Bill of Rights Act.
The Court of Appeal found both were inconsistent with the Bill of Rights Act provision 26(2) that no one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again and that the inconsistency has not been justified.
If his appeal is upheld by the country’s highest court, under recently passed amendments to the Bill of Rights Act, the Attorney-General must tell Parliament about it within six sitting days.
The responsible minister(s) then need to present a response within six months.
The Bill of Rights Act was amended in August in an effort to bridge the gap between the courts finding an inconsistency in the law, and the lawmakers actually doing something about it.
Chisnall’s lawyer Tony Ellis said the public protection order (PPO) for his client had already been quashed but the terms and conditions of an extended supervision order (ESO) needed to be sorted out.
This appeal is about confirming if the orders can exist alongside the Bill of Rights Act.
Ellis’ team will also cross-appeal that not only was section 26(2) breached but so were a range of other freedoms, including being imprisoned without trial, freedom of movement, arbitrary detention and not being treated with dignity and respect.
PPOs are post-sentence orders imposed under the Public Safety Act 2014. Under the order, a person must be detained after the end of their sentence in a secure facility within prison precincts.
The act states it is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences, and that it is not an objective to punish people against whom orders are made.
The Green Party voted against the law at the time. James Shaw, who had only recently been elected, told Parliament during the third reading it went too far.
“There is pressure on lawmakers to be seen to be doing something in a media-driven society. My sense is that this bill is one of those pieces of legislation. Because the Law Society has said it is unnecessary, because these people are covered by existing legislation, and because it transgresses the New Zealand Bill of Rights Act and the international convention on human rights, it is a step too far.
“It is erring in the direction of populist law and order, rather than a proper justice system.”
His colleague David Clendon also told the house the bill had bowed to public pressure and was responding to “media sensationalism”.
“The old phrase ‘If it bleeds, it leads’ is nowhere more real than in terms of the reporting of crime.”
The bill passed with the support of all other parties.
PPOs and the vulnerable
Ellis described the PPO unit Matawhāiti, which sits on the grounds of Christchurch Men’s Prison, as a “zoo”.
“You're detained in this unit and at the time, when we first started this, it seemed like a zoo, because you could drive past; it’s just by the main car park in front of the prison, you just drove past and you'd see people walking in the grounds.
“Now they've tried to put trees and bushes and things up to have a bit of privacy.”
He said one of his other clients with a PPO deliberately committed a crime to get put back in the main prison because he found Matawhāiti "so oppressive".
“You're locked in this system, initially for five years, which is renewable, so it's potentially a life imprisonment, but you haven't actually done anything.
“It's just you are suspected of going to commit a serious violent offence in the future. So you're detained without trial.”
Public Protection Orders are rare, but Ellis said of the four who were in Matawhāiti when he first took on Chisnall’s case, three were intellectually disabled.
Chisnall is no longer deemed intellectually disabled under the law because of improvements in his adaptive functioning abilities such as reading, writing and self-care.
“Of the people who get a PPO, most of them are intellectually disabled, or have been. So in that case, it's very common.
"I think I described it at one stage as a dumping ground for the intellectually disabled."
Politically unpalatable
There are only two cases to date where a declaration of inconsistency has been made in relation to the Bill of Rights. The first was in favour of Arthur Taylor on prisoner voting rights and the second is Ellis’ success with Chisnall in the Court of Appeal.
As far as the law went at that time, a declaration was the only remedy sought because any law change needs to come from Parliament.
A declaration in and of itself does not undo the law.
“Merely getting a declaration is not enough. There must be a response,” then-justice minister Andrew Little said at the first reading of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill.
The bill passed its third reading at the end of August, and should Chisnall’s appeal be upheld, will be the first time its powers are used.
University of Auckland associate professor John Ip said it would be a real test of the new legislation’s strength.
“There's very few politicians out there, who will say ... I'm going to essentially, campaign or spend political capital to affirm the rights of sex offenders. This is politically very unpalatable, right, for obvious reasons.
“But because of the way that the legislation has been drafted it actually requires someone to do something."
He said it would be an interesting one to watch.
“Now, as to whether that will make a difference in this case? I don't know. It’s still a hypothetical case - but a very, very interesting one to watch.
“There's a few more kind of procedural hoops, if you like, to jump through. You can't just say I'll just pretend that the court didn't say that - that clearly isn't possible anymore.”
Law Commission work underway
In 2017, Ellis won a case before the UN Human Rights Committee on behalf of two clients on preventative detention.
The government was called on to review its preventative detention law and asked the Law Commission to report back.
“I'm pleased to say they're looking into preventive detention, PPOs and ESOs. Because PPO is really a form of preventive detention so they're looking into that.
“And I've never had a case where you've won something and it's being referred to the Law Commission so it's quite significant, I guess.”
The Commission is due to report back by the end of 2024.
Chisnall’s appeal is set down for October 17 and 18 in the Supreme Court.
